Discrimination based on Pregnancy

McFarlane v. Brown, a recent decision of the BC Human Rights Tribunal, highlights the need for employers to be careful about how it treats pregnant employees.

Facts

Janie Brown ran a dog grooming business called Sunny Slope Dog Grooming. Brown employed Cathy McFarlane as a full-time dog groomer commencing September 2010. McFarlane was paid $17.00 per hour and by all accounts performed her work admirably. At the business Christmas party, Brown told McFarlane that she was performing well and that they had groomed an extra 100 dogs over the period leading to Christmas.

Everything was fine until, on January 4, 2011, McFarlane told Brown that she was pregnant. Brown then told McFarlane that her services were not required for a few days because business was slow. When McFarlane attempted to work on January 14, another employee asked McFarlane why she was there and told McFarlane that no dogs had been booked for her to groom. That same day, Brown left McFarlane a message asking her to pick up her tools and her last pay cheque. The next day, after further communications between Brown and McFarlane, Brown agreed to give McFarlane two weeks full time hours by way of notice. On January 20, Brown gave McFarlane a letter, which said there was a shortage of work and that McFarlane’s last day of work would be February 3.

Around this time, McFarlane came across a couple of advertisements on Craigslist for a dog groomer for Brown’s business. The advertisements stated, “This is a full time position now” and “We do not have a slow time! We are busy year round! GOOD HOURS & GOOD WAGES!”

McFarlane filed a complaint with the Tribunal alleging that Brown had discriminated against her in her employment, based on sex.

Hearing

At the hearing, McFarlane testified that Brown’s demeanour changed after McFarlane informed her of her pregnancy and she became cold towards McFarlane. McFarlane also testified that while she was employed at the business, Brown had “badmouthed” McFarlane’s predecessor who had taken pregnancy leave.

Brown claimed that she had terminated McFarlane because business was slow due to a significant snowfall on or around January 12 and that this had resulted in cancellation of existing bookings and a lack of new bookings. With regard to the advertisements, Brown claimed that she had inadvertently used a previous advertisement as the template and that the reference to never having a slow time was a mistake.

The evidence showed that the total number of bookings had only been reduced by three dogs due to the snowfall. Based on this evidence, the credibility of Brown and McFarlane, and all of the circumstances, the Tribunal concluded that Brown had discriminated against McFarlane on the basis of sex (pregnancy).

The Tribunal awarded McFarlane $4,000 in respect of wage loss. With regard to damages for injury to dignity, while the Tribunal sought written submissions on the amount of damages that it should award, the Tribunal noted that the discriminatory actions of Brown affected McFarlane significantly, particularly given her pregnancy at the material time. The Tribunal also noted that there is “inherent injury to a woman’s dignity in receiving the message that, simply because she is pregnant, she will not maintain her job”.

Employer refresher on discrimination

Discrimination in employment based on pregnancy is considered a form of discrimination on the basis of sex.

In order to establish a prima facie case of pregnancy discrimination, the employee must be able to show that she was pregnant at the relevant time, that the employer was aware of her pregnancy and that, as a result, she experienced adverse treatment with respect to her employment.

Pregnancy need only be a factor in the adverse treatment – it does not have to be the only factor. The proximity of a termination to the date an employer is made aware of a pregnancy is often considered by the Tribunal when determining whether the pregnancy was a factor in the termination

In the case discussed above, the Tribunal found that there was a nexus between McFarlane’s pregnancy and the termination based on the following:

When McFarlane told Brown that she was pregnant, Brown immediately told McFarlane that she did not need her for a few days.

Brown’s demeanor towards McFarlane changed.

The layoff happened just eleven days after McFarlane advised Brown of her pregnancy.

Employer lessons

If an employee tells you that she is pregnant, do not terminate her services or demote her.

Do not single out a pregnant employee in order to determine whether she can perform her work.

If an employee is temporarily unable to perform her work due to pregnancy, the employer needs to accommodate the pregnant employee. Accommodations may include:

Light work

Temporary reassignment to another position

Additional time for bathroom breaks

Temporary leave

An employer’s duty to accommodate is up to the point of undue hardship.

Continue to provide the employee with all earned benefits such as vacation, sick leave, seniority, overtime, etc.

Workplace health and safety is important and employers must balance the right to a safe workplace with the rights of a pregnant employee to participate fully in the workplace.